Opinion
F084776
04-10-2023
In re L.M. et al., Persons Coming Under the Juvenile Court Law. v. K.M., Defendant and Appellant. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent,
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Carlie Flaugher, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kern County Nos. 21CEJ300011-1, 21CEJ300011-2. Kimberly J. Nystrom-Geist, Judge.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel C. Cederborg, County Counsel, and Carlie Flaugher, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
FRANSON, J.
K.M. (mother) appeals from an order terminating her parental rights to her now eight-year-old son, L.M., and three-year-old daughter, B.M. (collectively the children), under Welfare and Institutions Code section 366.26. Her sole contention on appeal is that the Fresno County Department of Social Services (department) and the juvenile court failed to comply with the inquiry requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and related California law because extended family members were not asked about the children's possible Indian ancestry. The department argues for affirmance. We conditionally reverse the juvenile court's finding that ICWA does not apply and remand for further proceedings.
Statutory references are to the Welfare and Institutions Code.
"[B]ecause ICWA uses the term 'Indian,' we do the same for consistency, even though we recognize that other terms, such as 'Native American' or 'indigenous,' are preferred by many." (In re Benjamin M. (2021) 70 Cal.App.5th 735, fn. 1 (Benjamin M.).)
As we discuss more fully below, we review a juvenile court's ICWA findings under a hybrid substantial evidence/abuse of discretion standard, reviewing for substantial evidence whether there is reason to know a child is an Indian child, and for abuse of discretion a juvenile court's finding that a department exercised due diligence and conducted a "proper and adequate" ICWA inquiry. Further, we will reverse only on a showing that any ICWA error was prejudicial. Applying these standards, we conclude the court abused its discretion by concluding that the department exercised due diligence and conducted an adequate ICWA inquiry, and there is not substantial evidence in the record to support the juvenile court's finding that the children are not Indian children. We further conclude the court's ICWA error was prejudicial, and conditionally reverse the court's finding that ICWA does not apply and remand for full compliance with ICWA.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2021, after voluntary maintenance services proved unsuccessful, the department took then six-year-old L.M. and 16-month-old B.M. into protective custody and filed a dependency petition, alleging mother's use of methamphetamine and marijuana and unstable lifestyle placed the children at risk of harm. (§ 300, subd. (b)(1).) Attached to the petition was an ICWA-010(A) form, stating that the initial inquiry gave the department no reason to believe the children were or may be Indian children. Aaron J. and Ruben R. were identified as L.M. and B.M.'s alleged fathers, respectively.
Ruben was not provided reunification services as an alleged father and his whereabouts were unknown.
Mother and Aaron told the emergency response social worker they did not have any Indian heritage. They appeared at the detention hearing on January 15, 2021, and were appointed counsel. The juvenile court ordered the children detained pursuant to the petition and offered mother reunification services. The children were placed together in foster care. The juvenile court found ICWA must remain open, because "more work needs to be done," so it technically may apply.
Maternal relatives, B.S., the maternal grandmother, Paula S., the maternal great-grandmother, Michael S., a maternal great-uncle, and Jessa M., a maternal aunt, regularly visited the children.
On February 25, 2021, at the jurisdiction and disposition hearing, the juvenile court found that Aaron was L.M.'s biological father, ordered the children removed from parental custody and ordered mother and Aaron to participate in reunification services. The court found ICWA did not apply based on mother and Aaron's statement in court that neither had any Indian heritage and set a six-month review hearing.
The six-month review hearing was conducted as a contested hearing on November 15, 2021. The department recommended the juvenile court terminate reunification services and reported that ICWA did not apply, citing the juvenile court's ICWA finding made on February 25, 2021.
On November 15, 2021, the juvenile court found the parents made minimal progress in their case plans, terminated reunification services, and set a section 366.26 hearing for March 2, 2022.
In its February 18, 2022, report for the section 366.26 hearing, the department recommended the juvenile court terminate parental rights and free the children to be adopted by their foster parents. Regarding ICWA, the department inquired of mother and Aaron by telephone on December 1, 2021, whether they had any Indian heritage and was told that they did not. The department asked the court to continue to find ICWA inapplicable. A contested section 366.26 hearing was later set for June 13, 2022.
On June 13, 2022, at the contested 366.26 hearing, the juvenile court reviewed the earlier ICWA not applicable findings and asked both mother and Aaron if they had any new information about the Native American heritage for the children, which they answered no. The juvenile court found that ICWA continued to be inapplicable, and that the department had met its burden to inquire and its ongoing burden as well. The juvenile court then terminated parental rights. Mother timely appealed.
DISCUSSION
A. ICWA and the Indian Child
Congress enacted ICWA" 'to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture.'" (In re Isaiah W. (2016) 1 Cal.5th 1, 7-8.) Both ICWA and state law define an" 'Indian child'" as "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (25 U.S.C. § 1903(4); § 224.1, subd. (a) [adopting federal definition].)
B. Duty to Inquire
"Because it typically is not self-evident whether a child is an Indian child, both federal and state law mandate certain inquiries to be made in each case. These requirements are sometimes collectively referred to as the duty of initial inquiry." (Benjamin M., supra, 70 Cal.App.5th at p. 741.)
Federal regulations implementing ICWA require state courts to ask participants in a dependency case whether they know or have reason to know the child is an Indian child and to instruct the parties to inform the court "if they subsequently receive information that provides reason to know the child is an Indian child." (25 C.F.R. § 23.107(a) (2023); Benjamin M., supra, 70 Cal.App.5th at p. 741.)
State law requires t he juvenile court at a party's first appearance, to ask "each participant present in the hearing whether the participant knows or has reason to know that the child is an Indian child" (§ 224.2, subd. (c)) and requires each party to complete an ICWA-020 form (Cal. Rules of Court, rule 5.481(a)(2)(C)). "The parties are instructed to inform the court 'if t hey subsequently receive information that provides reason to know the child is an Indian child.' (25 C.F.R. § 23.107(a) (2020); § 224.2, subd. (c).)" (In re D.F. (2020) 55 Cal.App.5th 558, 566.)
California law, however, "more broadly imposes on [the department] and [the] juvenile court[] (but not parents) an 'affirmative and continuing duty to inquire' whether a child in the dependency proceeding 'is or may be an Indian child.'" (Benjamin M., supra, 70 Cal.App.5th at pp. 741-742, quoting § 224.2, subd. (a).) That duty to inquire "begins with [the] initial contact ... and obligates the juvenile court and [the department] to ask all relevant involved individuals whether the child may be an Indian child." (In re T.G. (2020) 58 Cal.App.5th 275, 290, citing § 224.2, subds. (a)-(c).)
Under section 224.2, subdivision (b), when the department takes a child into its temporary custody, the scope of its duty of initial inquiry is expanded to "include[], but is not limited to, asking the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child." (§ 224.2, subd. (b).) Extended family members include adults who are the child's stepparents, grandparents, siblings, brothers- or sisters-in-law, aunts, uncles, nieces, nephews, and first or second cousins. (25 U.S.C. § 1903(2); § 224.1, subd. (c).)
The state law requirement of "continuing duty can be divided into three phases: the initial duty to inquire, the duty of further inquiry, and the duty to provide formal ICWA notice" to Indian tribes and others. (In re Josiah T. (2021) 71 Cal.App.5th 388, 402.) The inquiry includes the department asking" 'the child, parents [and] ... extended family members ... whether the child is, or may be, an Indian child." (Ibid., citing § 224.2, subd. (b).) This case focuses on the initial duty to inquire.
If the initial inquiry gives the juvenile court or department a "reason to believe that an Indian child is involved," then their duty to "make further inquiry regarding the possible Indian status of the child" is triggered. (§ 224.2, subd. (e).) "[R]eason to believe" is defined as "whenever the court, social worker, or probation officer has information suggesting that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe." (§ 224.2, subd. (e)(1)).
The last phase of the continuing duty is where there is a "reason to know" an Indian child is involved. If so, formal notice under ICWA must be given to the child's "parents or legal guardian, Indian custodian, if any, and the child's tribe." (§ 224.3, subd. (a); Cal. Rules of Court, rule 5.481(c)(1); 25 U.S.C. § 1912(a).)
C. ICWA Finding Implies Proper Inquiry Was Made
Mother argues on appeal that the juvenile court erred in finding ICWA did not apply to her children because the department failed to satisfy its duty to inquire whether they were Indian children under ICWA. The juvenile court may find ICWA does not apply to a child's proceeding if it finds the department's further duty of inquiry has been satisfied with due diligence and there is no reason to know that child is an Indian child. (§ 224.2, subd. (i)(2); Cal. Rules of Court, rule 5.481(b)(3)(A).) The juvenile court's finding that ICWA does not apply thus"' "implies that ..... social workers and the court did not know or have a reason to know the children were Indian children and that social workers had fulfilled their duty of inquiry." '" (In re Josiah T., supra, 71 Cal.App.5th at p. 401.)
Social workers have no duty under federal law to ask extended family members about possible tribal membership. (In re A.C. (2021) 65 Cal.App.5th 1060, 1069.) The error, if any, is an error of state law. (Ibid.)
D. Standard of Review
As recently set forth in our decision in In re K.H. (2022) 84 Cal.App.5th 566 (K.H.), "[t]he juvenile court's finding that ICWA does not apply to the proceeding rests on two elemental determinations, 'subject to reversal based on sufficiency of the evidence.' (§ 224.2, subd. (i)(2).) The court must find there is 'no reason to know whether the child is an Indian child,' which is dependent upon whether any of the six circumstances set forth in subdivision (d) of section 224.2 apply. [Citation.] This inquiry is essentially factual and, therefore, is reviewed for substantial evidence." As the facts from the record before us are not in dispute, we independently determine whether ICWA's requirements were met. (In re D.F., supra, 55 Cal.App.5th at p. 568.)
"The juvenile court must also find a 'proper and adequate further inquiry and due diligence ....' (§ 224.2, subd. (i)(2).) While we review the court's factual findings on the second element for substantial evidence as well, we agree with [In re] Ezequiel G. [(2022) 81 Cal.App.5th 984] that, consistent with the reasoning in [In re] Caden C. [(2021) 11 Cal.5th 614], a hybrid standard of review is appropriate. (Ezequiel G., supra, 81 Cal.App.5th at pp. 1004-1005.) The inquiry is ultimately discretionary because it requires the juvenile court to 'engage in a delicate balancing of' various factors in assessing whether the agency's inquiry was proper and adequate within the context of ICWA and California law, and whether the agency acted with due diligence." (K.H., supra, 84 Cal.App.5th at p. 601.)
" 'Review for abuse of discretion is subtly different [from review for substantial evidence], focused not primarily on the evidence but the application of a legal standard. A court abuses its discretion only when"' "the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination." '" [Citation.] ... While each standard here fits a distinct type of determination under review, the practical difference between the standards is not likely to be very pronounced.'" (K.H., supra, 84 Cal.App.5th at p. 602.)
"Review of the juvenile court's findings under the foregoing standards is deferential, but' "an appellate court [nevertheless] exercises its independent judgment to determine whether the facts satisfy the rule of law."' [Citations.] Where the material facts are undisputed, courts have applied independent review to determine whether ICWA's requirements were satisfied. [Citations.] In this case, because we are confronted with an undeveloped record, the outcome is the same irrespective of the standards of review applied." (K.H., supra, 84 Cal.App.5th at p. 602.)
E. The Department Failed to Conduct an Adequate Initial Inquiry and the Juvenile Court Erred in Finding ICWA Did Not Apply
In this case, mother and Aaron told the emergency response social worker before the detention hearing that they did not have any Indian heritage. However, they were present at the detention hearing and the juvenile court did not inquire about their Indian ancestry at that time or ask them to complete an ICWA-020 form. The court did, however, ask them if they had Indian ancestry at the later jurisdiction and disposition hearing on February 25, 2021. They stated they did not, and the court found ICWA did not apply. The department inquired again of the parents before and during the section 366.26 hearing and again was told the children had no Indian heritage.
The duty of initial inquiry, however, did not end with asking the parents whether the children were or may be Indian children. The department was also required under section 224.2, subdivision (b) to ask extended family members. Extended family members include adults who are the child's stepparents, grandparents, siblings, brothers- or sisters-in-law, aunts, uncles, nieces, nephews, and first or second cousins. (25 U.S.C. § 1903(2); § 224.1, subd. (c).) Here, there were several maternal relatives who visited the children regularly and were available for the department to interview regarding Indian ancestry. In addition, Aaron identified his father as a support person. However, there is no evidence in the record that the department contacted any of the identified extended family members to inquire if he had Indian ancestry.
Under the circumstances, we conclude the department did not fulfill its statutory initial duty of inquiry. (§ 224.2, subd. (b).) The juvenile court may not find that ICWA does not apply when the absence of evidence that a child is an Indian child may have resulted from a department inquiry that is clearly inadequate and failed to demonstrate due diligence. As a result, the juvenile court's finding that ICWA did not apply was not supported by substantial evidence that the department conducted an adequate, proper, and duly diligent inquiry, and its contrary conclusion was an abuse of discretion.
F. The ICWA Error is Prejudicial and Reversible
Because the failure in this case concerned the department's duty of initial inquiry, only state law is involved. "Where a violation is of only state law, we may not reverse unless we find that the error was prejudicial. (Cal. Const., art. VI, § 13 ['No judgment shall be set aside ... unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice'].)" (Benjamin M., supra, 70 Cal.App.5th at p. 742.)
" '[T]o be entitled to relief on appeal from an alleged abuse of discretion, it must clearly appear the resulting injury is sufficiently grave to manifest a miscarriage of justice' [citations], and California law generally interprets its constitutional miscarriage of justice requirement 'as permitting reversal only if the reviewing court finds it reasonably probable the result would have been more favorable to the appealing party but for the error.'" (K.H., supra, 84 Cal.App.5th at pp. 606-607.)
However, in In re A.R. (2021) 11 Cal.5th 234, the Supreme Court "recognized that while we generally apply a Watson likelihood-of-success test to assess prejudice, a merits-based outcome-focused test is not always appropriate because it cannot always adequately measure the relevant harm. [Citation.] In other words, where the injury caused by the error is unrelated to an outcome on the merits, tethering the showing of prejudice to such an outcome misplaces the measure, at the expense of the rights the law in question was designed to protect." (K.H., supra, 84 Cal.App.5th at p. 609, italics omitted.)
People v. Watson (1956) 46 Cal.2d 818, 836.
As we explained in K.H.," 'ICWA compliance presents a unique situation ....'" (K.H., supra, 84 Cal.App.5th at p. 608.) "ICWA is not directed at reaching, or protecting, a specific outcome on the merits." (Id. at p. 609.) Rather," '[t]he purpose of ICWA and related California statutes is to provide notice to the tribe sufficient to allow it to determine whether the child is an Indian child, and whether the tribe wishes to intervene in the proceedings' [citation], and an adequate initial inquiry facilitates the information gathering upon which the court's ICWA determination will rest." (Id. at p. 608.) Yet "while the appealing party is usually a parent, parents do not bear the burden of gathering information in compliance with ICWA [citations], and parents may raise the claim of error for the first time on appeal." (Ibid.) Further, the ultimate determination whether a child is an Indian child rests with the tribe, not with a parent, the department, or the juvenile court. (Id. at p. 596.)
"[I]f the inquiry is inadequate at the outset, the likelihood that the opportunity to gather relevant information will present itself later in the proceeding declines precipitously." (K.H., supra, 84 Cal.App.5th at p. 609.) Thus, "the relevant injury under ICWA is not tied to whether the appealing parent can demonstrate to the juvenile court or a reviewing court a likelihood of success on the merits of whether a child is an Indian child[, under a standard Watson analysis]. The relevant rights under ICWA belong to Indian tribes and they have a statutory right to receive notice where an Indian child may be involved so that they may make that determination. It necessarily follows that [in the context of ICWA and consistent with A.R.,] the prejudice to those rights lies in the failure to gather and record the very information the juvenile court needs to ensure accuracy in determining whether further inquiry or notice is required, and whether ICWA does or does not apply. Many cases do not proceed beyond the inquiry at the first stage in the compliance process and, therefore, ensuring adequacy and accuracy at this step is critical if the rights of tribes under ICWA and California law are to be meaningfully safeguarded, as was intended by Congress and our state Legislature." (Id. at p. 591.)
As we explained in K.H., "where the opportunity to gather the relevant information critical to determining whether the child is or may be an Indian child is lost because there has not been adequate inquiry and due diligence, reversal for correction is generally the only effective safeguard." (K.H., supra, 84 Cal.App.5th at p. 610.) In the present case, the department's inquiry, limited only to mother and Aaron "fell well short of that required to gather the information needed to meaningfully safeguard the rights of the tribes, as intended under ICWA and California law." (Id. at p. 620.) Where the undisputed facts clearly show the limited extent of the ICWA initial inquiry, "a finding of harmlessness necessarily rests on speculation" and "is at odds with the statutory protections that ICWA and California law intent to afford Indian children and Indian tribes." (Id. at p. 611.) Therefore, the error in this case is prejudicial.
DISPOSITION
The juvenile court's finding that ICWA does not apply is conditionally reversed, and the matter is remanded to the juvenile court with directions to order the department to comply with the inquiry and documentation provisions set forth in section 224.2, subdivision (b) and rule 5.481(a)(5). If, after determining that an adequate inquiry was made consistent with the reasoning in this opinion, the court finds that ICWA applies, the court shall vacate its existing order and proceed in compliance with ICWA and related California law. If the court instead finds that ICWA does not apply, its ICWA finding shall be reinstated. In all other respects, the court's order terminating parental rights is affirmed.
I CONCUR: DETJEN, J.
POOCHIGIAN, Acting P. J., Dissenting.
I respectfully dissent on the issue of prejudice.
Introduction
Once an error is established on appeal, reviewing courts must next determine whether the challenged order or judgment should be reversed as a result. There are two primary approaches to errors of state law: the harmless error doctrine and the structural error doctrine. The question here is which approach applies to the erroneous failure to inquire of extended family members as required by Welfare and Institutions Code section 224.2.
All further statutory citations are to the Welfare and Institutions Code unless otherwise noted.
A recent spate of cases has led to a variety of new and often complex approaches to prejudice that are unique to inquiry errors. However, we do not need a new approach. Inquiry errors under state law, like other violations of state statutes implementing the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq. (ICWA)), should be subjected to a traditional harmless error analysis. (See In re Breanna S. (2017) 8 Cal.App.5th 636, 653 (Breanna S.), disapproved on other grounds by In re Caden C. (2021) 11 Cal.5th 614, 637, fn. 6, 638, fn. 7; In re H.B. (2008) 161 Cal.App.4th 115, 121-122; In re S.B. (2005) 130 Cal.App.4th 1148, 1162.) To that end, we ask whether" 'there is a reasonable probability that in the absence of the error, a result more favorable to the appealing party would have been reached.'" (In re Christopher L. (2022) 12 Cal.5th 1063, 1073 (Christopher L.).)
While applying this traditional standard, we must be vigilant and mindful that inquiry errors will often present situations where harmlessness is too difficult to assess. This fact does not warrant straying from the traditional approach, it "simply mean[s] that the errors are 'more likely to be prejudicial under the traditional harmless-error standard.'" (Christopher L., supra, 12 Cal.5th at p. 1080.)
Applying the traditional harmlessness standard to the present case, where both parents have denied Indian ancestry, it is clear the erroneous failure to inquire of more distant relatives was harmless beyond-a-reasonable-probability.
Harmless Error
"The California Constitution provides: 'No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.' (Cal. Const., art. VI, § 13.)" (Christopher L., supra, 12 Cal.5th at p. 1073.)
"The phrase 'miscarriage of justice' has a settled meaning in our law, having been explained in the seminal case of People v. Watson (1956) 46 Cal.2d 818 .... Thus, 'a "miscarriage of justice" should be declared only when the court, "after an examination of the entire cause, including the evidence," is of the "opinion" that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.'" (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.)
The same test applies in dependency matters. (In re Celine R. (2003) 31 Cal.4th 45, 60.) Errors are generally harmless" 'unless there is a reasonable probability that in the absence of the error, a result more favorable to the appealing party would have been reached.'" (Christopher L., supra, 12 Cal.5th at p. 1073, italics added.) Thus, evaluating harmlessness is inherently outcome-focused. The entire question is how certain we are that the result was unaffected by the error.
Indeed, the" 'effect of this provision is to eliminate any presumption of injury from error.'" (Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at p. 800.) "[T]he California constitutional reversible-error provision was adopted for the specific purpose of eliminating just such a prophylactic approach to reversible error." (People v. Cahill (1993) 5 Cal.4th 478, 503, fn. omitted.)
The harmless error approach applies to "a wide range of errors" because "most errors can be harmless." (People v. Blackburn (2015) 61 Cal.4th 1113, 1133.)
Structural Errors
However, a few errors are so fundamental that they are deemed a" 'miscarriage of justice'" under article VI, section 13 of the California Constitution, regardless of the strength of other evidence. (Christopher L., supra, 12 Cal.5th at p. 1073.) Such errors are" 'structural'" defects in the trial mechanism itself and are therefore not amenable to harmless error analysis. (Id. at p. 1074.) Structural defects typically involve basic protections without which a trial cannot reliably serve its function as a vehicle for ascertaining the truth. (See In re James F. (2008) 42 Cal.4th 901, 914.) Examples include the deprivation of the right to counsel and the denial of the right to trial by an impartial judge. (Christopher L., at p. 1073.)
Importantly, structural errors are "reversible per se." (Christopher L., supra, 12 Cal.5th at pp. 1069, 1073.)
The Dependency Context
Not only are structural errors rare across the board, they should be especially rare in the dependency context. Our Supreme Court has expressly cautioned against using the structural error doctrine in dependency cases. (In re R.F. (2021) 71 Cal.App.5th 459, 474.) While the structural error doctrine is not categorically inapplicable to dependency appeals (see Christopher L., supra, 12 Cal.5th at p. 1075), the Supreme Court has emphasized that structural errors must not be imported "unthinkingly" into dependency contexts. (In re James F., supra, 42 Cal.4th at pp. 915-916.)
One of the reasons behind harmless error review is that reversing based on an error that (likely) did not affect the outcome will often lead to superfluous proceedings on remand that ultimately reach the same result. (See People v. Cahill, supra, 5 Cal.4th at p. 509.) This concern around unnecessary delay is uniquely powerful in dependency cases. A child's prolonged uncertainty over whether he or she will remain in their current home is detrimental to their development. (Christopher L., supra, 12 Cal.5th at p. 1081.) It is bad enough when such delays are required, but it is a profound injustice when they are unnecessary.
"Childhood is not 'stayed' while the superior court revisits ICWA upon a Court of Appeal order to do so. Dependent children need the stability of a superior court final order and 'new' parents now." (In re J.K. (2022) 83 Cal.App.5th 498, 513 (dis. opn. of Yegan, J.), italics added.)
Standard Principles of Harmless Error Review Apply to Relative Inquiry Error
Fortunately, as explained below, relative inquiry error is actually quite compatible with the usual harmlessness approach. (See, e.g., In re Y.M. (2022) 82 Cal.App.5th 901, 910-912.)
The object of the inquiry mandated by section 224.2 is to ascertain whether there is "reason to know" the child is an "Indian child" under ICWA. (See § 224.2, subd. (c).) The "reason to know" determination is crucial for two reasons. First, an affirmative finding triggers a requirement to send formal notices to tribes and others. (§ 224.2, subd. (f).) These notices give the tribe an opportunity to acknowledge the child is a tribal member and/or intervene in the proceedings. (See § 224.3, subd. (b).) Second, if proper inquiry fails to yield "reason to know," the court may find that ICWA does not apply to the proceedings. (§ 224.2, subd. (i)(2).)
The term "Indian" is used to match the statutory language, though many prefer the term "Native American."
Inquiry might instead yield only reason to believe a child is an Indian child. (E.g., § 224.2, subd. (e).) This would trigger a further inquiry process. (Ibid.) However, the goal of further inquiry itself is to determine whether there is reason to know the child is an Indian child. (Id., subd. (e)(2).) Thus, the ultimate goal of initial and further inquiry is to uncover any reason to know the child is an Indian child. If inquiry does not yield "reason to know," the court may find ICWA does not apply to the proceedings. (§ 224.2, subd. (i)(2).)
It also can trigger a duty to work with all the tribes for which there is reason to know the child may be a member to verify whether the child or parent is indeed a member or eligible for membership. (See § 224.2, subd. (g).)
Because section 224.2 inquiry is tied to a factual determination (i.e., whether there is "reason to believe" or "reason to know" the child is an Indian child), it is amenable to the standard prejudice analysis. (See In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1014.) Specifically, we can look at the entire record to determine whether there is a reasonable probability the court would have found "reason to believe" or "reason to know" existed if the inquiry had been performed properly.
When our examination of the record reveals that both parents have denied Indian ancestry, the likelihood that more distant relatives of the child would have provided information that altered the determination of reason to believe/know falls below the threshold of a "reasonable probability." (See In re Ezequiel G., supra, 81 Cal.App.5th at pp. 1015-1016; In re M.M. (2022) 81 Cal.App.5th 61, 69, 72.) All that remains are unlikely "possibilities." (People v. Watson, supra, 46 Cal.2d at p. 837.)
It is even less likely that such an error affected the ultimate determination of whether ICWA applies to the proceedings (i.e., whether the child is an "Indian child".) Only a tribal member or the child of a tribal member is an Indian child under ICWA. (25 U.S.C. § 1903(4).) Membership of the child or a parent is an absolute requirement of "Indian child" status. Consequently, when both parents of a nonmember child have denied membership themselves, there is no reasonable probability the child is an "Indian child." (25 U.S.C. § 1903(4).) "[A] parent typically will know whether she has applied for membership for herself or her child - and her disclosure that she has not will, in most cases, reliably establish that a child is not an Indian child within the meaning of ICWA." (In re Ezequiel G., supra, 81 Cal.App.5th at p. 1010.) While a parent being unaware of their own membership is not impossible, it does not satisfy any credible conception of "reasonable probability." Prejudice "must necessarily be based upon reasonable probabilities rather than upon mere possibilities." (People v. Watson, supra, 46 Cal.2d at p. 837.)
The Majority Posits a Reversal Per Se Approach
The majority takes a wholly different approach, indistinguishable from structural error analysis. It posits that the object of our prejudice analysis must be the relevant "injury" and not a particular outcome. It then identifies that injury as "the failure to gather and record the very information the juvenile court needs to ensure accuracy in determining whether further inquiry or notice is required, and whether ICWA does or does not apply." (Maj. opn., ante, at p. 11.)
This formulation of prejudice - i.e., the "failure to gather and record" information during inquiry - is merely a restatement of the error. If the relevant "injury" for prejudice purposes is the inadequate inquiry itself, then, by definition, inadequate inquiry errors will always be prejudicial and reversible. This circular reasoning collapses the error and prejudice analyses into one. Under the majority's approach, establishing error necessarily establishes prejudice/reversibility, which is the definition of a structural error approach.
A Structural Error Approach is Improper
While it cannot be denied that the majority's approach is one of structural error, what is to say structural error is not the right approach here?
First, it is important to observe that the present situation actually does not involve ICWA error at all. ICWA does not require inquiry of extended family members. (In re A.C. (2021) 65 Cal.App.5th 1060, 1069.) Rather, the duty arises under California statutes. (§ 224.2, subds. (b) &(e)(2)(A).)
It is "essential" to distinguish between requirements imposed by ICWA itself versus "state standards for inquiry and notice that are higher than those mandated by ICWA." (Breanna S., supra, 8 Cal.App.5th at p. 653, fn. omitted; In re H.B., supra, 161 Cal.App.4th at pp. 121-122; In re S.B., supra, 130 Cal.App.4th at p. 1162.) The distinction is critical because the two are subject to different prejudice analyses. In contrast to some ICWA violations that are presumptively prejudicial, "[a]ny failure to comply with a higher state standard ... 'must be held harmless unless the appellant can show a reasonable probability that he or she would have enjoyed a more favorable result in the absence of the error. [Citations.]'" (Breanna S., supra, 8 Cal.App.5th at p. 653; see also In re H.B., supra, 161 Cal.App.4th at pp. 121-122; In re S.B., supra, 130 Cal.App.4th at p. 1162.)
Even presumptively prejudicial ICWA errors can be harmless under some circumstances. (See Breanna S., supra, 8 Cal.App.5th at p. 653, citing In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576.)
The majority departs from this longstanding rule regarding the applicable standard for ICWA-related errors, by relying on a non-ICWA case, In re A.R. (2021) 11 Cal.5th 234. (Maj. opn., ante, at p. 10.) But that case is readily distinguishable. There, counsel failed to file a timely notice of appeal, which is a jurisdictional deadline. The error would have foreclosed the right to any appeal whatsoever.
Structural errors implicate"' "basic protections" '" without which the judicial system cannot reliably serve its function as a vehicle for arriving at correct judgments. (See Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 556-557, superseded in part by section 366.05.) The right to appeal falls squarely into that category. It is no wonder the Supreme Court found that the prejudicial injury was "the opportunity to appeal at all." (In re A.R., supra, 11 Cal.5th at p. 252.)
Moreover, the Supreme Court still required a showing of prejudice for such errors. It must be shown the "parent would have taken a timely appeal" absent the error. (In re A.R., supra, 11 Cal.5th at pp. 252-253.) Yet the majority offers no explanation of what analogous showing is required for relative inquiry error to be prejudicial. Thus, even if A.R. were controlling, the majority has not applied it properly here.
If we are looking to non-ICWA cases for guidance, the recent case of Christopher L., supra, 12 Cal.5th 1063, is far more instructive. Just as here, the court was faced with the question of whether an error of state dependency law should be analyzed under the harmlessness approach of article VI, section 13 of the California Constitution and People v. Watson, supra, 46 Cal.2d 818 or, instead, should be deemed a structural error subject to reversal per se. (Christopher L., supra, 12 Cal.5th at pp. 1069, 1072-1073.)
The error was a serious one - the dependency court erroneously adjudicated a dependency petition without appointing counsel for the parent and without the parent's presence. (Christopher L., supra, 12 Cal.5th at p. 1063.) Justice Liu, writing for a unanimous court, held that while the rights at issue were "important," the errors were subject to harmless error analysis and not automatic reversal. (Id. at p. 1069.)
The Supreme Court analyzed several factors, including the feasibility of a" 'counterfactual inquiry'" into harmlessness. The court acknowledged that in some instances, a counterfactual analysis for the type of error at issue may be too difficult or speculative. (Christopher L., supra, 12 Cal.5th at p. 1082.) However, in other instances - such as the circumstances of Christopher L. itself - a counterfactual analysis was possible. (Id. at pp. 1080-1081.) The court concluded that the fact the error is sometimes amenable to a counterfactual analysis "weighs against" subjecting the error to a rule of automatic reversal. (Ibid., italics added.)
The fact that it may sometimes be more difficult to show an error to be harmless "does not mean the errors are not amenable to harmless error review." (Christopher L., supra, 12 Cal.5th at p. 1080.) It "simply mean[s] that the errors are 'more likely to be prejudicial under the traditional harmless-error standard.'" (Ibid.)
This is precisely the approach we should take with inquiry errors. Inquiry errors are more likely to be prejudicial under the traditional harmless-error standard because we do not know what the relatives might have said if asked. For example, if a parent says she is or may be a tribal member but does not know the specifics, and the agency then fails to properly inquire of available relatives, there remains a reasonable probability the outcome would have been different if the agency had properly asked the relatives. A prime example of this is In re K.H. (2022) 84 Cal.App.5th 566 (K.H.) where the father expressly indicated "he is or may be eligible for membership in a federally recognized Indian tribe," though he did not know its name or location. (Id. at p. 592.) Failure to inquire of available relatives in such a circumstance is prejudicial under the standard harmlessness approach because we cannot be certain beyond-a-reasonable-probability such inquiry would not have changed the "reason to know" determination. On this crucial point, K.H. is distinguishable from the present case.
Of course, there also remains a reasonable probability the relatives would have confirmed the child and parents are not Indian nor tribal members. But once it is determined that there is a reasonable probability of prejudice, the fact that there are also other reasonable probabilities is immaterial; the judgment must be reversed.
And just as we will not be able to declare harmlessness beyond-a-reasonable-probability in some cases, we will be able to make that determination in other cases.
Think of it like a puzzle with missing pieces. Sometimes, the pieces we do have allow us to identify what the puzzle depicts with sufficient certainty, regardless of what additional details the missing pieces might have added. Other times, the pieces we have are not enough, such that we would have to guess or at least speculate as to what the puzzle depicts.
So it is with relative inquiry error. When one or both parents leave open the possibility of tribal membership, we cannot say with the requisite degree of certainty that inquiring of relatives would not have yielded material information. And this is the factual scenario in many inquiry-error appeals. (E.g., K.H., supra, 84 Cal.App.5th at p. 592.) However, in other cases, an inquiry that is incomplete nonetheless yields information "sufficient for a reliable determination" such that it is "obvious that additional information would not have been meaningful to the inquiry." (In re Benjamin M. (2021) 70 Cal.App.5th 735, 743, italics added.) Cases where both parents disclaim Indian affiliation are a perfect example. (See, e.g., In re Ezequiel G., supra, 81 Cal.App.5th at pp. 1014-1015; In re M.M., supra, 81 Cal.App.5th at p. 72.)
The Majority Fails to Justify its Departure from the Standard Approach
In attempting to justify its departure from the usual approach, the majority observes that because tribes have a right to notice where an Indian child may be involved, it" 'necessarily follows that _ the prejudice to those rights lies in the failure to gather and record the ... information the juvenile court needs to ensure accuracy in determining whether further inquiry or notice is required ..." (Maj. opn., ante, at p. 11.) This reasoning is unpersuasive.
First, this argument elides the central question, which is whether the information missed by an incomplete inquiry is, indeed, "needed" to ensure accuracy. Certainly, when the missing information was, or might have been, needed to ensure accuracy, the error is reversible. But when the missing information was not needed to ensure accuracy, the error is harmless by definition.
Moreover, a right cannot be prejudiced in cases where it does not exist. Tribes only have a right to formal notice in cases where there is "reason to know" the child involved in the proceedings is an Indian child. (See § 224.2, subd. (f).) Consequently, in cases where there is not "reason to know," there is no right to formal notice and therefore no prejudice.
Stated fully, prejudice to the tribes' right to formal notice occurs when a failure to gather information leads to an erroneous failure to find that reason to know exists.Thus, to determine whether a tribes' right to formal notice has been prejudiced, we must ask whether the inquiry error led to an erroneous failure to find that reason to believe or reason to know exists.
In some circumstances, the prejudice would flow from an inadequate inquiry, leading to an erroneous failure to conduct further inquiry, leading to the erroneous failure to find reason to know exists.
Conclusion
Relative inquiry error does not invariably lead to fundamental unfairness. Therefore, applying a structural error analysis exacts an unacceptably steep cost on dependent children. (See Christopher L., supra, 12 Cal.5th at p. 1081.)" 'There is little that can be as detrimental to a child's sound development as uncertainty over whether he is to remain in his current "home," under the care of his parents or foster parents, especially when such uncertainty is prolonged.'" (Ibid.)
Under today's holding, the error of failing to inquire of the relatives of parents who have expressly denied Indian affiliation now takes an unlikely place alongside the other fundamental errors deemed structural by courts: the" '(i) "total deprivation of the right to counsel at trial"; (ii) trial by a "judge who was not impartial"; (iii) "unlawful exclusion of members of the defendant's race from [a] grand jury"; (iv) denial of the right to self-representation at trial; and (v) denial of the right to a public trial.'" (People v. Dominguez (2008) 166 Cal.App.4th 858, 867.)
In the immortal words of Sesame Street, one of these things is not like the others.
POOCHIGIAN, Acting P. J.